tv Washington This Week CSPAN December 28, 2014 5:30am-7:01am EST
the time they have come at the end of six years of the obama administration to rethink that shifting balance of power within the united states government and to ask a question about whether that growth of power in the executive has been a good thing or a bad thing overall and what are the steps that are necessary -- if not necessary to reverse it, to reassert the power of the other two branches, and in particular the power of the legislative branch. that is what we will talk your today. the person who has put his cards on the table, conceptual to cards on the table, is my colleague christopher demuth. as far as i know, he has never worked in congress. >> a summer intern. >> the only thread.
however, christopher demuth has, during his years for working for two republican white house is and as presidents of the american enterprise institute, is probably this town's leading expert on regulation and on regulatory reform. not only why regulation happens, but also the ways in which it has encroached upon aspects of american culture, society, and government in ways that are not entirely desirable, and what to do about that. i'm glad to ask him and see if this is the thought process involved. at a certain point, watching the steady growth of regulation in american government, i suspect that my colleague asked why is this happening? and part of the answer was what congress ought to be doing and is not, and that is going to be
the starting point for us to understand what it is a restoring the constitutional congress is about and what might colleague has to say about that particular topic. i'm going to sit down. >> let me start by saying to those who were coming to the christmas party, that is in the lobby. that is not here. you can go back down. thank you very much. thank you for that interesting and kind introduction. i'm particularly gratified that senator don nickles, one of the ablest legislators of the modern europe, came to town in 1980 after the 1980 elections, would come here to discuss some of these issues on the day after
the 113th congress has adjourned. last month the republicans won solid majorities of both houses of congress. i maintain that in so doing'they have gotten themselves into a terrible fix because they will be taking charge of a branch of government that through decades of delegation and disuse of its constitutional powers has terribly hobbled its ability to exercise effective checks and balances, to play the constitutional game. they are going to be facing an executive branch that has accumulated tremendous autonomous power as a result and is now under the management of a left-liberal president who is determined to exercise those powers to the hilt. this is a partisan problem for the republicans but it is also a
constitutional problem for all of us. my essay that you have, a constitutional congress, was published shortly before the election in the weekly standard. it addressed the partisan question but is genesis was on earlier writing on the constitutional one. i documented congresses wholesale delegation of its taxing, spending, lawmaking powers to the lawmaking branch and viewed with alarm the growing concentration of power in a single branch and a single individual. it had occurred to me that a time of fully-divided government, when one party controlled the congress, article one, and one party controlled the executive, article two might have provided some opening for an institutional reboot. to paraphrase james madison, the partisan interests of a
congressional majority might be connected to the constitutional rights of the place. when it appeared that we might be in for a time of fully divided government, i set myself the thinking about how the connection might be accomplished and i came up with a five-part plan for congressional restoration. i noticed that a five-part plan is very popular for dieting, dating, making a resume, other earnest endeavors. i thought this might draw attention to my ideas. there is a fundamental difficulty here. it has to be knowledge and emphasize. the modern age has not been kind to the representative legislature. this idea that we should be governed by elected representatives of local
districts who gathered together to make the laws that we live our lives by by hammering out compromises was an original embodiment against the prerogatives of kings and autocrats. that was a very long time ago. it was a time when politics and government were naturally restrained by what economists call high transaction costs. when travel and communications our slow and costly, legislative sections were critical locations to learn developments in other sections of the nation, to take the measure of other political leaders, friend and foe, to forge alliances, make compromises, far from the gaze of the home-town crowds.
when political organizing was costly, political groups were few and broad-based and the demands were general. when law enforcement and program administration were costly, the executive branch could of course all do only a few things. in that world, representative legislation was not a beanbag, but it was at least manageable. in the modern age, i affluence and high technology had disrupt it all of those al functions. -- all of those traditional functions. lawmakers no longer need to schlep to washington to find out about national issues or plot and dicker with their colleagues. they can be done to the media and direct communications. we have thousands of very well-organized lobby groups to go for every imaginable cause. their abilities to monitor reward, and sanction individual legislators has reduced space
for compromise and created new opportunities among collocations for championing national, rather than local, interests. the pressures foreign and lists array of government interventions is overwhelmed legislative capacities. the disciplines of the old committee system and seniority system, and the falling costs of administration have an powered the executive branch. they have greatly augmented its natural advantages over the legislature, advantages born of hierarchy, specialization, the ability to multiply functions indefinitely. in the 18th and 19th century law-making was legislative.
it was custom-made. it was bespoke lawmaking. in the early as 20 century, say the new deal, it became industrial-h executive lawmaking. lawmaking in america today is information-age executive lawmaking. the basic congressional adaptation has been to delegate to the consecutive agencies. congress has very broad goals. they are against discriminating against the handicap. the authority for achieving the goals is given to agencies with broad discretion to pursue those were the goals through various regulatory procedures. the individual members, senator representatives in place of the
age-old give and take of collective legislating, adopt a new business model. they set about influencing the decisions of this going executive behemoth on behalf of local constituency groups. the committee leadership structure is supplanted by a artisan leadership structure devoted to supporting or opposing the incumbent president, whatever he may do. regular order, especially budgeting and appropriating, collapses under the weight of 1000 worthy and unworthy causes clamming for attention. i will give you the first three steps. if you know about four and five, you'll have to read the article. the first step in my congressional makeover is for congress to reclaim its many authorities for taxing
appropriating, and borrowing that it has abdicated to the executive branch. critically, this would be done as soon as the hundred 14th convenes and be strictly as a matter of constitutional housekeeping and renovation. it would have no policy content about spending levels or immigration policy or the powers of the consumer financial protection bureau or any of the other matters on which the administration and the republican congress will be sharply divided. in that manner, when the president was presented with the bill for his signature, he would be given a clear choice whether or not to prevent congress from reclaiming delegated powers and exercising them as the constitution provides. that formulation to some seemed a little bit prissy when it was first advanced, but i am happy
to say that it's intense practicality became apparent almost immediately after the election when president obama made his long-advertised and highly controversial changes to immigration policy by executive order. the republicans who were opposed to that action said in the next day or two that they were going to stop it with a rider to the appropriations of the u.s. customs and immigration service. a day or two later, there was another embarrassed apology, another report. oops, sorry, we just realized we had not realize this. the ci acid is completely financed by its own fees. it is completely independent of congressional appropriation so there is nothing we can do about it. the budget legislation that was finally passed last weekend extended appropriations for the
2015 fiscal year all the way through to october with the appointed exception of the department of homeland etc. he where csis resides and has to be re-appropriated in february by congress. that does nothing because this eis does not need congressional appropriation at the the statute granting independence is rescinded. if that recession is done as part of a bill that also prevents's eis from implementing the president's unilateral immigration policies, he is certainly going to veto it. the political controversy will be about the substance of the immigration policies rather than the central constitutional point. i want to note one more thing about this controversy. customs and immigration service
gained its financial independence as part of the homeland security act of 2002 which was passed that president bush's instance in the wake of the 9/11 terrorist attacks. an important part of the delegation story going back over the decades is that extraordinary powers are delegated from congress to the executive in the face of emergencies that require fast action and then they continue to rest in the executive branch when normal times return. the broader lesson is this -- crisis and urgency favors the executive. normalcy, routine, and patience favor the legislature. that is the essential reason congress needs to reclaim the many financial constitutional powers it has given up in a matter that is shorn of ancillary crisis-provoking battles with the president over
immigration policy or the powers of the consumer financial protection bureau or over raising the debt ceiling. following the republican debacle of the latest debt ceiling congress handed over its borrowing power to the treasury. the treasury can borrow at will to pay its bills until this coming march. that power needs to be reclaimed as part of an unadorned act were congress is simply declaring its readiness to resume a routine exercise of its constitutional responsibilities. the exercise of those powers in competition with the executive will involve the difficult questions of strategy and republicans are not going to win all of them by any means. at least the congress will have a fighting chance.
it does not have a fighting chance today. step two is to reinstitute the spending power. this is both the least controversial as an abstract manner of the proposals, but also the most problematic and difficult as a practical manner. congress's inability to even pass a budget and government funding on a regular basis is a source of widespread contempt and ridicule. a view shared by many in congress itself. many will tie you that resuming regular budgeting be a splendid idea and speaker boehner and senator mcconnell have vowed to set things straight when they get back to town. this would not require legislation. the president's signature is not part of it.
all they have to do is resume congress' own procedures for annual auditing appropriations procedures it established in the progression -- in the congressional budgeting act of 1974. in hearing to the discipline of a budget and passing 12 regular appropriation bills by the end of each summer will require radical change in structure and culture. changes in the adaptations congress has made to modern politics. the evisceration of the committee chairman, especially of the taxing, appropriating and budgeting committees, has cleared away internal congressional obstacles to spending growth and multiplicity of interest group tweaks that individual members are under constant pressure to a seed to at the decline of committee members and the transfer of the powers to party leadership was
dramatically illustrated in the past week in the humiliation of finance chairman ron wyden in the senate at the hands of his party leadership. the annual continuing resolution replacing appropriation bills in which the entire government is funded for a. 'of time -- a period of time play strongly to the advantages of the executive branch because it results in one big annual crisis. i worked in the reagan administration for several years. when i was there, congress frequently and routinely interfered with excellent and well thought out policy initiatives we were pursuing by regulation, antitrust, other
areas through ryders. the treasury department, the justice department, other agencies. we would see the riders. we would see if we can work around them. something we could do in place of them. if we could not, we would just sort of give up and move on to other mischief. we always took them seriously. they were routine. they happened all the time. if all of these had been rolled up into one annual crisis were ronald reagan could have unrolled his national rhetorical skills and competition with a few much less known people on capitol hill, it would've been dandy for us. it would not have been good for congress. reforming the spending process
will require reconstruction of a strong, specialized, policy hierarchy where the committee chairman have strong powers onto themselves and are no longer the handmaidens of the party leadership. it will require relearning actual legislating, the arts of collective choice where we have to come to a decision amongst ourselves and compromise with people sometimes a very different and conflicting views. the third step is to on delegate -- undelegate the lawmaking power from the regulation committees. congress by delegation has created a lawmaking machinery capable of cranking out loss and -- at a volume vastly beyond what a bicameral committee could be doing by the constitution by itself. the most direct proposal is a
republican idea that has floated for the last couple of years and passed the republican house twice called reins. the bill would say that major regulations of the executive branch could not take effect until they were approved by both houses of congress and signed by the president, which would be a foregone conclusion, and would enjoy fast-track privileges to come to one up or down vote --to an upper down vote. that would mean regular legislation would be simple up or down votes. it takes the slow-moving complicating legislative process and plunks it into the high-volume regulatory machine we have built. a lot of people are pretty much for it.
now that congress could pass such a thing, we will see if they really want to do it. it would mean 10 or 20 major pieces of complicated legislation. it would arrive with privileges at a time and place of the president choosing. the congress will certainly try to displace some regulatory decisions under obamacare.
the e.p.a.'s greenhouse gas initiatives, other things where republican feelings run high. it's not going to be easy to, i mean, those things will not be signed by the president unless he finds himself in a fix after the supreme court decision on the federal health -- the subsidies to the federal health insurance exchanges in the summer. my own idea is for some confidence building exercises for congress to get back in the game of actually making decisions, collective choice legislation in these areas and i proposed in my article two little ideas. that would have a good chance of getting a lot of democratic votes and a good chance that the president would sign. one to be to legislate high, very high capital standards for large banks and other large financial institutions. ousting the extremely timid
ideas for enhanced capital standards being floated by the fed and other agencies. creating the very best bailout protection we could have in the future would mean that the equity holders, not the taxpayers, were standing behind financial risks. senator brown of ohio, a liberal democrat, and senator vitter of louisiana, a conservative republican, have backed just such a bill. the second is to free these amazing new innovations in personal health information such as smartphone monitoring apps and personal genetic profiling techniques such as those of 23 and me from f.d.a. premarketing controls. senator deb fisher of nebraska republican, senator king of maine, independent, that means democrat, he caucuses with the democrats, have introduced a pretty good piece of legislation
along those lines. i have a particularly colorful phrase that i'm proud of in my article. it said, if these acts were to pass and actually take power away from the regulators in these two areas, they would be great victories for bipartisan, smart populism over the forces of foe expertise and crony capitalism. how do you like that? so i'm for pursuing opportunities here to take law making right back to congress. i think that we should be prepared that congress, in thinking about the balance of powers, should be prepared for some surprises in the next two years. i think this conventional media idea that the presidents a late termer, a lame duck, he's very unpopular, he'll try to pursue some foreign policy initiatives, that is what presidents do in the end game, with you not much
else, i think that may be incorrect. he's a man of strong ideology systemic views. he's very smart. he's intensely determined. and if you look at the things he's done in immigration and other areas, it's as if he came to washington with a list of about 10 things that he told us about during the campaign in 2008, and he's determined to get them done and he doesn't have to be popular to get them done. he can just get them done, given the powers that the executive branch has accumulated. i want to give an idea that everybody's going to think is unbelievably fanciful. consider the idea that president obama has advanced it several times since the beginning of his national career and most recently in an amazing statement he released shortly after -- i think it was shortly after the election, in any event, it was in the last month, month or so.
and that is that the internet ought to be converted into a national public utility. under comprehensive controls over price, entry, terms of service and, in particular, this is called net neutrality, that service providers should be converted into common carriers who must take all commerce at the same price, regardless of the different prices and values of the services that are being provided. essentially to treat the internet the way we treated railroads and airlines in previous epics. it's an unbelievably primitive retrograde idea. but it's got some support in the faculty lounges, in the law schools around the country, in some economics departments. it's got some support in the business models of some big firms. and the president is deeply attached to this idea. moreover, he says he can't do it
by himself. it's up to the f.c.c. well, that's exactly what he told us several times about immigration policy before he just came out and announced, well, i'm going to do it myself. could the president make the internet a national publicly regulated utility all by himself? i think that he could. first of all, the electromagnetic spectrum, which is the key scarce resource in the internet, is something that is by declaration owned by the federal government. has been ever since herbert hoover said so in the 1920's. most of that spectrum is allocated by the f.c.c. but the government could take that allocation back in a way i'm going to tell you in a second. and in any event, the executive agencies, defense, commerce, others, they own a huge amount of spectrum that they do not use themselves that can provide
enormous bait for the enterprise i have in mind. moreover, the government itself provides many things directly like geostationary positioning systems for our apple and g-map devices on our phones. that actually is based upon a government enterprise. the democratic party has a sort of proprietary feeling about the internet. it has from the beginning. al gore told us that he came up with the idea to begin with, many people in the party believe that it was singularly responsible for the president's 2008 victory. most of all, the executive branch is now able to act unilaterally with enormous power and lack of any kind of apologetics, doing things that would have been considered impossible in the past. i have in mind the administration's position in
the, quote, managed bankruptcies of general motors and chrysler. where it simply rearranged what had been the traditional legal rules of priority, in the b.p. oil spill, where it simply called up somebody from the white house, they called up b.p. and said, please sebled us $20 billion immediately, we're going to use it to administer our own compensation fund. something that if you'd said it before, can a president just do this, people said, no, he can't do that, but did he it and it was a popular cause and it worked. most recently these amazing -- the amazing developments in these so-called inversion international mergers, where there are some very solid financially sensible mergers that had been prepared agreed by the boards and people at the white house got on the phone with some of the directors and had some candid conversations and the board announced they were abandoning
these initiatives to everybody's amazement. if the white house called together the major internet service providers, the major firms that provide major internet matters and forged an agreement fournette neutrality and public utility controls, that everybody was going to agree to, and everybody kind of understood that they had to, because there were tax and other pieces of business they had before the executive branch that would be taken into account, and it was taken over to the f.c.c. for rubber stamp approval in the beginning of a program, and by the way, nobody appeals. we want to keep the judges out of this. i think it could be accomplished. i don't want people to think i'm paranoid. this is not a prediction. i want to use this
idea simply to dramatize the astounding amount of discretionary power that has accumulated in the executive branch and how it could be used for astounding purposes in the next two years. i'm not unmindful that congress has many vices of its own. a republican congress we cons constituted along the lines i have sketched out would without doubt be the source of excessive and horribly wasteful spending, tax and regulatory provisions that benefit narrow groups at the expense of the public. those are part of a larger policy and institutional problem we have in our politics. but the immediate problem is that our constitution depends on robust competition among the three branches and in particular between the two political branches to keep federal power relatively constrained, under
control and honest between elections when most of us are not paying attention. and to police the inevitable corruptions of concentrated power. the republicans have many big and worthy policy reforms that they wish to pursue and many of us feel very strongly about them and hope that they do well. but my point is that even as they do that it has fallen to them to do something larger and that is to restore some badly needed constitutional balance. thank you. >> when i first read chris' article, i immediately said, this is an article that deserves to be a panel discussion at hudson, it needs to be something that will interject
deep into the debate about the role of congress, past, present and future. and i did this for two reasons. one, out of a measure of my respect for my colleague and friend. the second reason, because it was a sneaky way to get to meet don. don to me, i will always think of him as the sunny face of the republican senate during those divisive years of the clinton second term, of someone who always seemed to have the right thing to say, who always seemed to be on the one hand supporting causes and issues that i, as a devout conservative, supported, but at the same time did it in ways that were -- that no liberal could accuse as being threatening or as being
dangerous to -- or mean-spirited ordaining rouse to the public good. so i began to wonder, is it really possible that here in washington there could be someone who is so good and sane and intelligent and -- with the kind of integrity that he seems to have? and everybody that i've talked to has said, yes that's don. a little biographical information for you and in fact the more you read his biography, the more you're going to like him. and particularly in my case. like me, he's a smalltown guy, grew up in oklahoma. like me he attended public schools. to pay for his education at oklahoma state university, he and his wife ran a professional dry cleaning service. >> janitorial service. >> janitorial service.
do you still have that business? >> no. >> ok. and then in 197 don ran -- 1978 don ran for the oklahoma state senate and won. two years later, he ran for the united states senate and was elected as the youngest republican ever elected to the united states senate. in his years in the senate, he assumed a series of leadership posts which i won't summerize for you here. but he certainly was part of the inner circle in shaping the future direction of the -- of what a republican senate should look like, the kinds of issues to take up, the ways in which to build the core that will be necessary for a republican senate and a republican congress that comes up in january. and for that reason i think it's extremely important
to have don here as part of our commentating on the issue of the future of the congress and what takes place. as you may know, congressman knick ols is now retired from the senate. his place was taken by tomko burn who also seems to -- tom coburn who also seems to me to be the model of the kind of legislator we would want, the kind of senator we would want in the future. i just want to tell you that i have enormous respect for tom coburn but dons is the original coin. and so -- don is the original coin. so with that i want you to welcome please senator don nichols. >> i'll just make a few comments and then i'll join you. one, i want to compliment chris for his outstanding speech and say i share many of the concerns that he touched on. as
was mentioned, i came into town as a senator in 1980. i will say things have changed a lot. leadership in the senate, for example, just flipped. it's flipped seven times since i've been in town. it's going to flip again. and it's not all that unhealthy when it does change. chris talked about the natural tensions, there should be some tension between the legislative branch and the executive branch and frankly the judicial branch. i believe very strongly in that. and i was in the senate for 24 years i always felt like it was part of my job, since i was in leadership for most of that time, to protect the legislative branch. protect it from the executive branch, if they were legislating, and even if the judicial branch, if they were in the legislative business, which they've done on occasion. but the real problem in the last several years, i
think, with the -- with president obama's administration, is i think there's a real disrespect or a lack of respect for congress. i know he served in the senate for two years. he came in just as i was retiring. voluntarily i might add. and i complimented him. all members of congress members of the house and the president, when they are sworn in, they take an oath to uphold the constitution. and i am absolutely flabbergasted at some of the comments and some of the statements that our president, who sometimes says he's a constitutional scholar, makes in just grossly voy lating the constitution. grossly. the constitution, article one of the constitution says basically congress shall make all laws. all legislative powers are granted to the house and the senate. all legislative powers. the only exception to
that is in the 10th amendment which basically gives all other legislative powers to the states and to the people. but all legislative powers on the federal side are delegated to the house and to the senate. and then reserved to the states and to the people. it doesn't say, mr. president, you don't like the fact that congress hasn't legislated on immigration, you go ahead and do it anyway, and then maybe hope that congress is going to address it and if you're happy with it, you can sign it and it will supersede the law that you just implemented. that was his statement not long ago. right after the election. interesting he made that statement after the election. but i thought, whoa, did he just say that? did he really just say, i'm going to pass a law and i know it should be done by congress, and frankly for the last two or three years he said it should be done by congress, when people were telling him, hey we want you to do more on immigration, he said, i'm not king. i can't do it by -- i have to go -- the congress has
to act. he was right in saying that. and he said it several times. and then right after the election he said, i'm going to do it, full speed ahead, and i want congress, i challenge congress to supersede what i just did. whoa. doesn't say that. it doesn't say it when it comes to the health care bill. here's the law that congress passed. pretty unusual circumstances, the way they passed it, but i won't comment on that now. ok, congress passed the law, some of it is unpopular and some of it is going to come up before the election, so i'm just going to suspend the individual mandate. not going to enforce it. i hate to say it, but he's supposed to faithfully execute the laws. it doesn't say suspend those that he doesn't like, don't have to enforce the ones that really maybe are uncomfortable. that in this case he's totally responsible for. because it might have political repercussions. and you can just
go on and on. oh, well you mentioned the consumer finance protection board, cfpb. unbelievable delegated powers to one individual more or less made a czar, subject to senate confirmation. he couldn't get senate confirmation, so he did a recess appointment. and this individual, the way congress passed this law, you talk about congress delegating powers congress passed laws that says, yeah, they can get a percentage of the revenues coming from the fed and it boils down to several hundred millions of dollars a year, not subject to a congressional appropriation. so no oversight, no board, no commission, in this case didn't even have the confirmation process. again, just sticking the finger in the eye, i think of the senate. his nlrb recess appointments, on individuals
that he couldn't get through the senate, that were actually defeated in the senate, were not going to be confirmed, so he did a recess appointment. in this case the courts said, whoa, you exceeded your authority. then he came back was able to get him in because senator reid changed the rules of the senate. wow. i think there is a constitutional crisis in the fact that the president is really disregarding the constitution as it's written. and is trying to implement his policies as if he is a czar or a king. and there's a real reason why our forefathers had the wisdom to separate the powers and to have a balance of powers, to have the checks and balances. and what happened after president obama was elected, he ended up getting 59 votes in the senate and then 60. and all of a sudden he could get almost anything through. and i almost think, god bless him, but senator byrd was one of the champion notice senate who would defend the legislative -- champion in the senate who
would defend the legislative powers or the balance of powers and it was in his later years and i was gone and anyway they were able to railroad it through. and they did railroad it through. passed i think on december 24 or something in the first year. wow. it really bothers me. and i hope and pray -- let me -- i want to be positive. there is new leadership in town. and with senator mcconnell as the new majority leader, he is going to return to regular order. one of the things that chris was advocating was that congress would do its job. for whatever reason with the democratic leadership in the senate for the last six years, and i want to separate the two. the house basically did its job. they passed a budget bill every year. they passed most of the appropriation bills every year. they didn't pass in the senate. when chris talked about the senate doing continuing resolutions, the senate last night passed -- well, last
night, a couple of days ago passed an appropriation bill that had most of the appropriation -- that's the first time the senate has acted on an appropriation bill in years. i think for five years they were on the continuing resolution. this bill passed and, yes, they worked out most of all of the bills, but they didn't have any of the bills in the senate on the senate floor subject to amendment. the thing i'm saying is, good news, is i know senator mcconnell. i know for me for the last 27 years. they're going to do a fantastic job. they're going to revert to regular order. they're going to have appropriation bills. they're going to have a budget. i was on the budget committee for 24 years. every year we tried to do a budget. we didn't always get them done. but we always had one on the floor. we always marked it up and we usually had hundreds of votes in the process much passing a budget -- process of passing a
budget. for the last six years president obama's first year when he had this supermajority did get it through, and he used that to pass frankly obamacare. and ads 1 trillion stimulus program -- and a $1 trillion stimulus program. since then he didn't have a budget. except for one year the house said, you don't get paid if you don't do a budget, so the senate did pass a budget. but it was not designed to do anything. it wasn't designed to actually come up with a budget. now they're going to come up with a budget. and it is not easy. i was budget chairman for a couple of years, but i was on that committee and if you do a budget, you're doing the largest budget in the world. and you're dealing with everything. and in the senate, the way the rules are, you have unlimited opportunity to amend it. so anybody, senator sanders can say, i want less money for defense and i want more money for education. you have unlimited number of those amendments. and so you can easily see, it is not an easy process. but it's a healthy process. i will guarantee, i will bet anything in the next year the senate will have more
votes in 2015 than they've had in the last six years combined. they're going to have lots of votes. they're going to have lots of opportunities to do some good, to do some bad, to have some mischief. but they're going to be working. and i bet you, it may not be pretty, i should forewarn you on that. legislative process sometimes is not pretty. but it will be working. they will do a budget. they will have appropriation bills. they'll have lots of opportunities to make amendments. whether they'll be successful, this is the idea of, well, ok, the republicans really don't like what the president is trying to pass the law on immigration, so how do you stop that? oh, we find out they already have the money coming in automatically. well, can they change that? that's going to be hard because he might veto it. so you might have a lot of things like that. where congress is trying to reassert basically congressional authority. you all know he has enormous budget in the trillions of dollars, but congress only appropriates about 30% of it. the rest of it's kind of on automatic pilot
through entitlements and so on. so congress can shape those, can control them, can pass laws to change them, but it's not easy. and this president may veto those. if somebody says, i think we have a reasonable cost of living adjustment. not one that's overinflatesed. it can save a lot of money, can help save social security, it's something that everybody that's studied anything knows it should be done. but can it happen? maybe not. because senator reid said, over my body, we're not going to do. it so you can have some big things like that, it might be very healthy, be very positive. it can get done, can it get past the senate? can it get past the white house? who knows the next couple of years. there's going to be lots of tension. that's ok. that's healthy. that's part of the process. so i'm actually kind of excited. i think you're going to see a return to the legislative branch, more or less standing up to the executive branch. hopefully to reclaim some of the authority
and the powers that have been granted. but mainly to push back from a white house right now that is trying to usurp their powers, well beyond what the constitution allows. and so it's going to be a very interesting, very -- i started to say hotly contested, but this is part of the process. i think it's going to be kind of fun to observe. in the next couple of yearsment and hopefully, prayerfully, in the long-term, we will return to a real, what i would call, constitutionally balanced basis of government between the three branches of government. thank you for letting me participate. >> thank you. as moderator i get to claim privilege to ask the first questions. first one for chris, second one for senator nickles. my question for chris is this. in your list, your agenda, for what the new
congress must do as part of its clawing back its powers and its role, constitutional role, the one piece of legislation for the obama administration that's been a major source of controversy here in what's taken place is obamacare. and yet you didn't mention it. explain yourself. >> in obamacare, the policy action has basically moved to the courts and to the states. for the time being. last week the congress did something that nobody thought possible, it actually revised, substantially revised two provisions of dodd-frank. that was thought to be impossible. that wasn't quite the prurel partisan enactment
that obama was. i think it still is the case that the administration would veto any effort to change obamacare. however, there are several strong constitutional challenges, including in particular the one coming out of the d.c. circuit and the virginia cases and others regarding the provision of tax subsidies to the federal as opposed to state exchanges. that will be decided by the supreme court, by the middle of the year. i think it's fair to say that there's a significant chance that that act will be held to have been beyond their statutory authorities. >> it's a pretty potent challenge. >> and if so, senator nickles is health care expert, so i'm hesitant to say too much here, but i believe that if that -- if the decision went to that way,
the administration would be in something of a fix and it would really need some legislation which would open things up a little bit. obamacare also requires a lot of cooperation from the states and we have a new sectionalism in our politics now. we used to have the south versus the rest of the country. that's long gone. but we now have the heartland growing and generally conservative states versus the coastal, generally liberal generally not growing, states. and it's a pretty sharp sectionalism that's making this cooperation difficult. so we have these two other constitutional checks, the courts and the states, and i think congress has been disabled by the fact that the senate was democratic. it's still going to be somewhat
disabled because it's -- a change is going to require the president's signature. but we have these other two backstops and i think whatever congress may do -- if it can do anything effective, the administration first needs to need its help and a sequence of state decisions or court decisions could be the ant seedent to that. >> part of this is because the legislative process wasn't followed. this is the biggest change frankly in entitlements since the creation of medicare and social security. and yet the senate, world's most deliberative body, they did have some votes on it in the finance committee, but they didn't have votes on it in the senate. never had a vote, up and down vote, on the bill, on medical device tax, on individual mandate, on employer mandate, you can keep your health care plan if you like it, grandfathering in all the health care plans, which president obama campaigned on, president obama said he wasn't
for an individual mandate, that he insist of the -- that he insists is now part of the bill. never had a vote in the u.s. senate. think of that. never had a vote in the last six years. never had a vote. and that's i think really the reason why senator reid kind of blocked this whole senate. because he knew, hey, if i open up the amendment process, we're going to get all these tough votes and i'm not sure, you know, obamacare passed by one vote and now you see senator harkin has come out and said, oh, yeah, we've made some mistakes and others. so there's going to be lots of votes. there's going to be lots of votes and i think voting is a healthy process. i always told my colleagues, if you're afreud to vote, don't -- why are you in the senate? don't run for the house and senate if you can't take tough votes. but they were able to pass it by one volt. late at night, right before christmas. a lot of it's been very indefensible. chris is exactly right. this court decision is kind of the lever.
this is well over i think half the individuals in the country as far as will they be entitled to subsidies? that has to come from state exchanges, not from the federal exchange. but i don't know what's going to happen because justice roberts was pretty creative in his original ruling, which kind of surprised me because i worked hard to get him confirmed before he was confirmed. and -- but anyway. i think this is a big deal. and if the obama administration loses, they will have to come to congress and say, help. and so there will be a major rewrite if that happens. if not, you may see congress pick off pieces of it you know, medical device tax you might have a grandfather you might -- the administration said, oh, we can just defer the mandates. we'll defer them until past the next election. well, congress could pass a deferring of the mandates. the
mandates are going to hit individuals this next couple of months. and most people -- oh, that's just a couple hundred dollars. it's 2% of your payroll. so if you're making $100,000, that's $2,000 penalty. it's not insignificant. but the president by executive action suspended that part of the law. until after the election. well congress can pass a law to indefinitely suspend it or to suspend it or to repeal it. congress is going to have that chance. the president can veto it. takes 2/3 to override the veto. so you're going to have a lot of that going on and my guess is congress will make an effort to totally repeal it, i don't know if that can get through the senate or not. the president will veto it. then they'll probably come back and make some more discrete pieces of it. probably starting with medical device tax, because it
does appear the votes might be there to actually pass that. but i would expect you'll see -- a lot of votes on obamacare, because they've never voted on the senate. also interesting, as the senate did pass and had 60 votes, only 30 members of the senate who voted for it originally are in the senate. it's been a big turnover and a whole lot of those have been elected in the meantime have not become the biggest proponents. >> it's not their legacy. >> it's not their legacy. they don't have to defend it. those that did defend it became former senators. >> my question now for senator nickles, this is kind of a crystal ball question. on two issues that are dear to me. one is how the new congress the new senate, will act on keystone pipeline. and the other one is how they will handle the issue about lifting the oil export ban and what the repercussions there will be. >>
on keystone, leader mcconnell's already announced that that's going to be top of the list. you may remember that harry reid wouldn't allow the senate to vote on it for years. in a way that might have a chance to get to the president's desk. he did after the election, before the special election, i say special election, the runoff election in louisiana, which was just last december the 5 or 6, and so they did have it and so he was able to give her vote. i'm sure senator mcconnell will get a similar vote up probably early next year. opec had us kind of by the throat at that
time. we end up importing more the canadians have been with us on everything and this is part of our -- i just don't even think it's a close call and even the state department said as much. but the president i think -- i even said some time ago if he doesn't move on keystone he is bound to lose the senate because you have all these states were directly impacted on keystone. he lost every one of those states. so i kind of think -- anyway.
i think congress will pass it. whether or not they can get the votes or have some leverage with the president. it's one thing to pass it freestanding. it's another thing to have it connected to something the president wants or needs. a lot of times you marry legislation to -- with other items. so that's part of the process. >> and oil export. >> oil expert i think makes economic sense. congress has looked at it a little bit. senator murkowski, chairman of the energy committee is in favor of it. i would expect that the votes would be there in the house and senate to do it. there are some people opposed to it. the oil industry is going through a lot of turmoil with the price of oil declining about 60% in the last six months. frankly that has more waves than people are able to see. the waves are permeating all the way into russia and middle
eastern countries. it's a very significant thing. the positive thing, america to some extent because of the fracking revolution and because of the enormous expansion of oil production in the balkan and other shale places in the united states has is on the verge of breaking the back of opec for the first time since the early 70's. and many of you will remember there was oil lines in 71 and 73 we had shortages. you had oil going tomorrow $8 to $40. it was enormous. negative rep cushions on the u.s. economy. opec had us kind of by the throat at that time. we ended up importing more and more. and more and more. now we're importing less and less and less. we're going to be totally independent of imports certainly if you include canada and mexico and so that to me is very exciting. the leverage that opec has had over us is disappearing. and also russia's
currency opportunities -- he's being crushed right now. so this is going to have significant -- and frankly it's because the u.s. exploration that really began by independent oil companies and it's just remarkable. it also gives us economic advantages for manufacturing natural gas. we're going to have lower natural gas prices than the rest of the world for some time. that oil shock of 19734 a huge damaging impact on the economy. it also had a huge damaging impact on the american psychee. i think we're on the verge now of really wiping away that legacy. should we owe up debate for questions? >> please. >> when the microphone comes to you to speak, if you could just identify yourself and whatever affiliation you care to
disclose. blue shirt first. >> thank you. it wasn't that long ago that the big complaints in d.c. was about congressional earmarks and congress trying to micromanage spending. and now the current continuing resolution that was just passed is well over 1,000 pages and has a whole bunch of provisions that has absolutely nothing to do with spending. most of which we haven't even learned about yet. it seems to me that congress hasn't given up its powers and it seems to me that when people are unhappy with what's being done, they find some part of the process to claim about, rather than complaining about what's being done. >> i would say you make several valid points. the good news is it's going to change. instead of having one bill that didn't ever go through the senate, so you
never had one senator able to offer any amendments on that bill, you're now going to have 12 appropriation bills. i remember the old days when we passed them, we would pass them -- i said it's not pretty -- you'd probably work on the bill all week and do a handful of amendments monday and tuesday, maybe more on wednesday. a lot on thursday. and usually we'd say, all right, we're going to go home when we pass the bill. and so everybody's got the amendments. this will shock you but harry reid and i did this, i was way up and -- i was whip and he was whip and we passed most of the appropriation bills and this is frankly from 2004 back for several years. whose -- who has a list of amendments? thursday night those amendments start falling off. at about 1:00, everybody said, that's enough. let's go home. but people had a chance to offer their amendments and they had a chance to have exposure and frankly if you
didn't like it, you'd try and find a weak part in the bill. you'd expose them if you found something that's really -- really doesn't make sense. so the amendment process is a healthy process and it is an educational process and it's time consuming. so it gives people, ok, here's the bill. here's the bill for the interior department. it funds every little park and everything in the country. they manage millions of acres. so there will be amendments on, can you have oil and gas drilling here, can you do this can you mine this? all of those things -- to me, that's part of governing. and having that bill on the floor for a few days is a healthy process. so instead of, you know, at midnight or something passing a bill that's this deep that no one can be totally aware of, you'll have 12 -- i say you, the committees and members of the senate and the house and frankly the american people, because it's going to be debated and they'll have it and it's going to be available, you'll have it on the floor, people now can go online and get a copy of it, they can email their member, what in the world is this, it's
going to be a much more open process. >> continuing resolution is not legislative process. and this is not complaining about process, because you don't like the result. continuing resolution simply continues what was done the last year. but then it has lots of things that are thrown in. the appropriating committees, the budget committee, if you went back to last, i guess it was september they passed a continuing resolution through december, the appropriators have no idea what was in it. they hadn't seen the bill. people voted for it without knowing anything that was in it. the only thing that is known is that it has to pass. that's the one thing that is known. it must pass. and the result is that the leadership is highly amenable to particular earmarks. so a lot of things do get thrown in it.
a lot of things get thrown into appropriations. but the appropriation is actually a deliberative process , collective choice. as don says you take lots of votes. continuing resolution, there's just one vote. i'm exaggerating a little bit, but just so you understand, it's done in the majority leader's office. it's tightly controlled. it's a game -- usually there's a game of chicken going on with the executive branch. it's the whole government of the united states, absent all of these independently financed agencies, it has to pass and a lot of things get thrown in. so it's very different from traditional legislation. traditional legislation, sometimes it's not that pretty and you need to have a little vigorous to pass an appropriations bill. but it's done at a smaller scale. there's more voting, there's more participation. and the people that are -- have worked
their way up the committee structure, they're actually participating rather than just you're a republican, you're a democrat, you're going to vote for it, you're going to vote against it, unless we can make a few little tweaks by helping with a couple things you care about. so i think it's fundamentally different. >> the difference too, if you're doing a continuing resolution, one it's admitting you failed. you didn't pass all your appropriation bills. you're supposed to pass all the appropriation bills by the rules by the end of september. and also because it's 12, there are a lot -- they're a lot more digestible. you can handle 12 individual bills neds of $1.1 trillion. that's a lot to swallow. that's hard to get your hands on it. even if you've been doing it for a while. so a whole lot of the solution to the problem, legislative problems, in my opinion can be summed up as return to regular order. regular order basically means following the law, it means doing a budget, interesting, the administration is part of this. they are supposed to introduce their budget in i
think middle of january, no later than february 1. they've been late every year, usually by a month or so. congress is supposed to pass it by april 15. i actually passed one on time, that's the last time that happened. that was in 2003 or 2004. that's not easy. >> that budget by the way is in the museum of congressional history. on display there. >> it's not easy. but that sets the parameters, both houses pass it, then that tells the house appropriators, ok, here's how much money you have. they allocate amongst their committees. and then they're ready to start marking up their players are saying, we're going to do that. interesting, i've had a lot of democrats, new democrats, in the senate, come up to me and say, we want the senate to work. what can we do? i tell them, regular order. and a lot of them are very frustrated.
some of them feel like even that costs them control of the senate. because they weren't able to separate themselves from the president. because they never voted, their voting record was 98% in line with president obama. who's not very popular. so if they would have had appropriations and lots of votes, they could have said, hey, wait a minute, on that health care bill, i didn't support that individual mandate or i didn't support that medical device tax or i didn't support -- i wanted to make sure you could keep your health care plan. if you liked it, you could keep it. we were promised that. well, that disappeared when the bill was enacted. if they would have had a chance to vote on it, they might have been able to give themselves some protection and maybe passed a better bill and maybe not be so beat up during an election time. >> because the president was an anchor among most of the senators that lot. he wasn't out campaigning in lass and colorado and so on for a lot of the close senate races.
more votes, i always tell people, don't be afraid to vote. it's a healthy process. your opponents are always going to have plenty of ammo. i mean, you're going to cast lots of votes and most votes you could run a good ad against anybody on almost any issue and if they're any good they're going to have able to -- but that should be ok. >> next? >> i'm sorry. gentleman with the sunglasses. then we'll come down front. >> that's you. >> they are actually photo grade. senator, you hit on two things. >> i'm sorry, we didn't catch the name. >> i'm dino rudy. i'm on the board of the advisors of the federation for american immigration reform. so i'm going to get to an immigration question. i'm not speaking for the organization. you hit on two things, senator. one, you mentioned robert byrd. and the other thing that you mentioned is how the process
works through regular order. robert byrd was a great defender of the senate as an institution. and was not afraid to stand up to the executive, even the executive of his own party. and then he passed away. and it seems as if there was nobody left in the senate who was able or willing to do that. senator levin stood up to harry reid on getting rid of the filibuster, but he was the only one. only democrat. why do you believe that solely a return to regular order will undo the damage that it appears that the senate has done to itself and the congress has done to itself to weaken itself vis-a-vis the president?
do you believe that it is even possible for the congress to restore the historic balance given the way that the senate has caved into the president -- harry reid almost himself protecting the president at the expense of the power of the senate? >> excellent question. i think it can be restored. return to regular order is 90% of it. senate rules are very important. i hope they go back to 60 vote majority on confirmations. to give you an example, that is a transfer of power to the executive branch to go from 50
-- 60 251. -- 60 to 51. if you are president and you are ultra liberal left, and you want to appoint somebody that happens to be on the organized labor's payroll for last 20 years. you probably could not get him through a republican senate. you are going to have to get someone more mainstream. if you have 51, full speed ahead . you could put in someone really radical on the epa because you can get your people in. i/o is figured whoever won the elections should begin in latitude in putting their people in. in some cases where you have
this administration putting in people who are really far to the left, a 60 vote threshold would've stopped that and it would've stopped a bunch of nominees in the last couple of days. robert byrd, he and i both testified before the rules committee against changing the threshold from 60 to a majority. a bunch of new democrat senators who been in the senate for a year or two, we have to change these rules. i thought, you do not understand the institution. having 60 makes the senate more bipartisan. if you have 51, you can railroad anybody you want. if you have to have 60, very seldom does either side have 63 democrats headed for about a year. you have to go way back before anybody had over 60. if you have to have 60, you have
to reach out to the other party. it makes you be more bipartisan and makes your nominees be not quite so much on the fringe. i think that restoration of rule 60, not just for nominations and regular order would do most all the difference. this is entering -- this election is going to do that. you are going to see the senate functional. part of your question, you set congress has not. i love the senate, never served in the house. to the house's bluff, they have done regular order and john boehner has allowed committee chairman to mark up their bills. he is not try to impose. we have not had regular order. democrat leadership took the bill away from the finance
committee and said we are going to rewrite it. that is what they did on obamacare. a bipartisan vote coming out of the committee and a lot of input , lots of amendments. to bet bill and said we have 60, we do not need republicans. basically rewrote the bill in leader's office and did not allow amendments on it. no republican voted for it, house or senate. none of them had in put on it. -- input on it. if you do not get to have any input, you are ticked. i would not want to be in the senate if i could not offer amendments. in the last five years -- there were people who ran for election -- reelection this year, been in office for six years effort --
never offered an amendment on the floor of the senate. i do not know how many hundreds of amendments i was involved in. it was in the hundreds. i cannot imagine being in the senate and not having an opportunity to do amendments. it is surreal. so out of normal. that is going to change. i will tell you, the democrats are going to like it. they're going to get more votes than they have had in the last six years. it is going to be a big change. i will bet you see positive things come out of it. i think you will see a return to the camaraderie. the senate has always had a special camaraderie admiration and work that goes beyond partisanship. a lot of that was -- has not happened. i think it is going to restore.
it is a great place to serve and work. maybe some of you have worked in the senate. it hopefully will have a return to its better days. i'm excited about that. >> we have time for one more question. >> thank you very much. formerly with the u.s. department of agriculture. i'm listening to what you are saying and you begin with comments from 1932 -- the executive has usurped the power of the congressional. you spent the last hour attacking obama. is he the guilty party? what happened to the other 75 years would he was not in office? that is when the congress gave up its power. i find it is such a one-sided argument against the obama administration.
granted, he is taken some powers , but he cannot be the only one who is change thing so radically and that period. we saw franklin roosevelt elected four times and we put term limits on it, why are there not term limits on senators? usurped four terms. -- usurped four terms. why not change the whole culture? >> i could answer either of those. i, personally -- you have three branches of government. only the executive branch has limitations. we limit the president two terms. it would be fine with me if we limited the other two branches
-- and i say two, with some limitations. i do not think eight years which is the limitation on the executive branch, maybe 12 or something for the legislative branch. if you do it, you have to do it the way the executive branch was limited, it has to because to shuttle. i encourage -- it has to be constitutional. i encourage it not be done unilaterally. usually, the ones who take the i'm out in two years -- some of them are very good members and maybe more conservative free enterprise built and some go to congress to redistribute your wealth and they can bit stay there for a long time -- and they can stay there for a long
time. if it is constitutional, it will apply to everybody. >> do you have a response? >> the emphasis of my talk was not -- the emphasis of my talk was on congressional delegation as a prose to -- as opposed to presidential usurpation. over the years, presidents have been more or less aggressive about doing things where they did not have statutory power. franklin roosevelt -- i do not know if it was right before or after pull harbor -- pearl harbor, he wanted to have industrial controls. war related price wage controls. he gave one of his talks and he said, i want congress to pass authority for national production wage and price
controls. if they do not, i'm going to do it by myself and i'm going to do it out of my prerogative as the repository of the confidence of the american people and i will be doing it on behalf of the people. when we no longer need these powers, i will give it back to the people. it was amazing, beyond anything president obama said. you can find examples of this. in general, i would say in the past 30 years, the major impetus has been congressional delegation. if you look at the creation of one after another agency with discretionary power, that is new . far beyond anything that happened in the new deal. things have changed recently. i would mark the change to the end of the bush administration come up the financial crisis of 2008. the administration did things that were beyond anything in
precedent. the administration formed an alliance with the federal reserve board and made unilateral de facto appropriations. hundreds of billions of dollars. i did not know they could do that. that was a pretty big deal. president obama, i believe, has been more exorbitant in his unilateral claims on things he has cared about, especially in obamacare and several of the appointments in the immigration matter. i think the obamacare decisions are the most amazing. some examples i gave, managing the bankruptcy, stepping in and saying, here's how we are going to allocate assets. these tax inversions. never seen anything like that before. i have got my political views on
these matters but looking at it institutionally, i think it is too soon to say whether the obama administration is a blip or a trend. in my heart of hearts, i think it is a blip but i am impressed by the continuing -- continuum 2007 2 today. >> i would break it up in a couple pieces. fdr -- you had world war ii. if you go back -- i started when reagan started. you had reagan, bush, clinton and bush. i think the republicans in that group were assertive of presidential authority when it came to international, but not so on domestic. i also think all, including president clinton, had a greater respect for congress. i went to the white house when bill clinton was president a lot. i went a lot of both bush is
president. i went to the white house more often than -- in any of those terms as part of the leadership than mitch mcconnell has been in the last six years. i probably went to the white house more in one year and he went to the white house in the last six years. he has only been invited to the white house three or four times in six years. i used to go every week. there was much greater dialogue and respect for the institution from president clinton and both president bush's and ronald reagan. reagan and bush and cheney were assertive on international authority. a little different. the one thing that chris mentioned, the financial bailout at the end of president bush's term. that was also the war crisis.
i remember being there and i was never one that wanted to have the government or the fed or the treasury secretary to have such unlimited powers. i was also worried whether or not the bank would be able to cash checks. the bank across the street, the bank that -- it was a scary time. that was 2009, after i had retired. i remember being frightened about that. no secretary paulson said here's a blank piece of paper, i want that authority. he ended up getting a lot of authority. that was a scary time. we had already seen the stock market. nasdaq went from 5000 to 1000. you had a crash. oil went from 130 two 40 --to
40. a scary time. >> we are going to have to wrap it up. i want to thank -- i just bank my own microphone. i want to thank our panelists for a fast leading -- a fascinating discussion. [applause] >> the coming of the new congress offers an opportunity not just to pass new legislation , but also to restore some of the powers of a constitutional congress. i hope that in this discussion people have a chance to review it. that some of our legislatures -- legislators understand they have a roadmap. thank you for coming.
>> washington journal is next. live with your phone calls and the day's news. at 10:00 eastern, an interview with steve bullock. later, a discussion on the bill of rights with samuel alito and jeb bush. on washington journal, heritage foundation chief economist thomas stephen moore will talk about priorities for the new congress. with oklahoma state university professor john foubert. a look at issues per trade in
editorial cartoons. we will take your phone calls on facebook and twitter. -- phone calls in comments on facebook and twitter. washington journal is next. host: as we entered the last few days here of the year 2014 we have a question for you this sunday morning. who had the best and worst year in washington? it could be someone in congress, over at the white house elsewhere in government, or just elsewhere in town. who had the best and worst year this past year 2014. call the following numbers -- host: